There were three other cases to be heard, before the Woollard case. Orals are over and first impressions from two sources are not favorable. First comment:

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I left the court nearly sick to my stomach. IANAL but it seems to me that they are looking for a way not to deal with this.

Next comment:

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[I'm] not optimistic on the results upcoming.

Both people are on their way back to MD from Richmond, VA. I'll report more when I know more.

The appellate attorney in MD was called away for some important business things and had to change his plans to attend the hearing. Friday, the Court will have a link to the orals, and we can all judge for ourselves.

Towards the end of the hearing, Judge Andre M. Davis suggested the court could find that the recent rulings do not apply outside the home — with the intention of sending the case to the Supreme Court, which he hoped might be able to offer some clarity.

OK, Krucam made it back and posted:

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The Senior Judge on the panel was Judge King, and he did the lion's share of the talking. Monday morning quarterback suggests he is likely going to be the one guaranteed vote against us.

Met a reporter from the B'more Sun (Ian) and spoke with him for a few. Met briefly with a female reporter (forgot her name) from WashPo, we might see something from them as well.

MDSP Superintendent Brown came in, dressed up in his dress uniform. You'll never guess who ended up sitting next to me for all 4 cases... Just a little uncomfortable...

State Atty Matthew Fader had the first time up in front of the panel. Judge King almost immediately started going into Younger Abstention. Younger Abstention was brought up in District. It suggests a plaintiff needs to exhaust all remedies before "bothering" the Federal Courts. In Woollard's case, he was denied by MDSP, appealed to the hangun review board and was denied, he COULD have gone through the MD State Courts after that....that is where Judge King was leading...

1) Snowden & Scherr are two cases in the MD State cellar showing why it would be a waste of time exercising a Carrry case through State Cts
2) Why is this Appellate Judge wondering about this in the first place???
3) Perhaps, just wishing it wasn't before him??

Back to Mr Fader's time on the clock...

- Fader brought up to the Court that Younger was put to rest at District.
- That didn't stop Judge King, he asked about Rooker Feldman Abstention, if Younger didn't work....
- The State of MD recognizes the right outside the home....you can go to the range, militarily train, yada, yada, yada. Oh, only handguns are impacted by 5-306/4-203, so rifles & shotguns are OK. Yep, and the Judges had fun with that and the State held firm on that...
- Judge Davis chimed in, asking if the statute impacted Concealed Carry Only. He's clearly exploring the Open vs CCW angle. Recall, VA has no-permit Open Carry, permit-req'd CCW.
- Fader replies that it is only a "Carry" statute, not Open/Concealed specific.
- Judge Davis starts suggesting GSR for CCW, no GSR for Open...I want to catch the audio, but he was definitely going down that path...
- Judge Diaz (?) brought up that the District Court Injunction may have been "too broad". He definitely seemed to be probing to a degree at that time.
- Fader goes on with his prepared remarks, saying while Self Defense is core to the right, it only exists "In the Home", outside the home hasn't been established yet. (sorta truth)
- Discussion then went into the CA4 Masciandaro case. Much was brought up on Judge Niemeyer's dissent (pro-2A) in Masciandaro.
- Judge Diaz mentions that the 2A doesn't have a GSR qualifier...
- Judge Diaz (?) mentions that Open Carrying of Shotguns seems kind of counter-intuitive...

Alan Gura's time came up next....

- Judge King almost IMMEDIATELY started querying on Rooker-Feldman. We'll know for sure in a few days, but I believe it had to be at least the first 5 minutes of our 15 minute slot dialog abouto Rooker-Feldman. Gura says that this was explored at the Sister Case Kachalsky in NY, and was ruled out at District.
- After ~5 minutes of Rooker-Feldman, Judge King ate more time off the SAF clock (~2 minutes more) by going in the MD State Court case Williams (bus stop public carry of a gun). Gura had to explain this was a different animal. Judge King asked (knowing the answer) if this went to the Supreme Court (a petition was filed), Gura answered it had, but the Petition was denied. Judge King has a smile, I swear...
- Judge Davis (I'm starting to warm up to him) asks Gura if they could rule against a semi-auto, but permit a revolver with Open Carry (again, I like his thinking).
- Gura says probably not, brings up weapons in "Common Use" for "Lawful Purposes", per Heller.
- Judge King then starts probing whether the existing statute may be Legit. Clearly probing for a potential remand by my read....

Fader gets up for his rebuttal.
- States the state has not conceded the "scope" question (assuming this means outside the home), Judge King is nodding in agreement.
- Judge King, I think asked if Williams was Persuasive.
DISCLAIMER: I want to hear the tape to make sure I heard right...if so, we're fugged. I can't believe an Appellate Federal Judge would ask that question to begin with...again, I need to hear the audio, particularly during Fader's rebuttal time.

I'll let you all chew over that. I wanted to get something to the group, I want to get out and enjoy the beautiful day with a quick 20 miles on the bike...blow off some nervous energy....

- Fader goes on with his prepared remarks, saying while Self Defense is core to the right, it only exists "In the Home", outside the home hasn't been established yet. (sorta truth)

NOT a "sorta truth". It's an obscene lie.

Here's how this really works.

These judges want to assume that we only have those civil rights that the US Supreme Court have ruled on and hence granted us.

We have to fight that attitude at every turn. If their view was correct, then circa 1793 or so the federal government would have had the right to, say, torture confessions out of people or otherwise violate every element of the Bill Of Rights - because the US Supremes hadn't had a chance to rule on much of anything in the 1792 BoR. And that's clearly absurd.

We have a right to keep and BEAR arms. Period, end of discussion. The second part of that sentence exists. The courts are there to protect it, not to grant it out of whole cloth.

We have to fight the BS or nobody else will. We cannot repeat the lies, not even "sorta".

I agree with Jim. There is no validity to the "in the home" view. Various anti-gun judges are using Heller to fabricate that perspective, but it's not valid. The discussion in the Heller case revolved primarily around keeping a gun in the home for exactly one reason: Being allowed to keep a gun (assembled and ready to use) was what Heller asked for. But the ruling was a discussion about and a decision regarding whether the right to keep AND BEAR arms is an individual right, or a collective right. Both Heller and McDonald discussed at length why it is an individual right.

End of discussion. Neither case discussed or decided that the RKBA ends at the front door of your residence. Al Norris quoted Krucam as saying this view is "sorta right," but it is NOT sorta right. It is completely wrong, and we should not allow ourselves to be bullied or persuaded into thinking it is even "sorta" right, even for one nanosecond.

Guys, it really doesn't matter what you or I say. At this stage of things, it matters a great deal what the Court says. So far, the courts are (pretty much) all zeroing in on the exclusive remedy in Heller and ignoring the more broadly worded language that actually incorporated the right (McDonald).

Multiple people (even judges) repeating a lie does not make the lie become truth.

It is not "sorta true."

It is true (not even "sorta") that some courts are using the "in the home" point on which to hang their hats in doing their best to deny the RKBA to people within their jurisdictions. The fact they are doing this does not make it true that the RKBA applies only within the home.

He should just ask "Is there any way that anyone can think up that I can get out of having to deal with this case?"

That is exactly what Judge King was doing.

I still need time to go over the audio, but it appears to me that this panel will concoct whatever method they can, to avoid the question... Even if it means quoting Judge Wilkinson from Masciandaro (it was suggested they kick it up to the SCOTUS - Judge Davis, I think)!

Having listened, I'm coming away with an entirely different perspective than the opinion I've already reported. Of course, I wasn't there and cannot base my opinion upon body language. However...

What I heard was Faber being questioned without mercy and constantly being interrupted. The panel barely gave him time to answer, before being pelted with another query from a different angle. Much hemming and hawing by the appellant.

You might have also noted that when Faber's time was up, he was abruptly silenced. Contrast that with Gura's argument time, who, when appraised that he was 44 seconds over, the court insisted he finish his thought. At rebuttal, Faber was again, cut off.

Also note, that the court had to correct Faber as to what exactly the Rooker-Feldman doctrine was all about. Faber was wholly unprepared for this line of questioning.

Contrary to what has been reported, Alan Gura started his time with the Rooker-Feldman doctrine, in order to clarify to the court, why it was inapplicable. Something that Faber failed to do, please note.

Another thing I noted was that contrary to the way the court questioned Faber, Gura was given comparatively free reign in his answers. There were three separate times that Gura expounded upon the salient wording of Heller (twice) and McDonald (once), with virtually no interruptions from the court. These Judges (yes, even judge King) were very interested in what Gura had to say.

Add to this the time spent explaining why Masciandaro and Williams were not on point, and I've come away with the feeling that the court knew that the State had painted itself into a corner. They gave Faber every chance to redeem his case, and Faber flubbed it, big time (he literally shot his own foot, at the end of his rebuttal).

I also agree that Judge King is anti-gun and was looking for even the most tenuous thread to overturn the district court (hence the attention to the jurisdictional issue). That being said, I also feel that Judge Davis' remarks about kicking the case up the ladder, was made as sarcasm to Judge King, himself.

All in all, I feel much better about this case, having listened to the audio, this third time around.

In response to Davis hypothetical revolver vs semi-auto question... I think Gura was about to say "I think the state would have a stronger claim actually prohibiting (revolvers).

The logic being that there has been a trend toward using semi-automatics, a trend AWAY from using revolvers. So an argument could be made that semi-automatics are arms of the kind in common use for traditional lawful purposes - revolvers, less so. Or perhaps an argument could be made that revolvers are no longer arms of the kind in common use for traditional lawful purposes. Ha ha ha ha...

I just thought it was funny that Alan Gura almost said that (hypothetically) a state might have an argument for banning revolvers. He was interupted by Judge King before he finished his sentence (thank Heaven for small favors)

I see nobody is willing to comment, so here is the paragraph I thought was interesting:

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Second, in response to Judge Davis’s inquiry about seeking additional guidance from the Supreme Court, Appellees maintain that Article III courts cannot decline to decide constitutional questions. Appellees’ Br. 12-14. However, if the Court desires additional guidance, the correct procedure is not to enter a decision, but to certify a question pursuant to 28 U.S.C. § 1254(2).

The question that isn't being asked is; What is 28 U.S.C. § 1254(2) and what does it do? There are 2 methods of requesting the Supreme Court to review a case. The first, we are familiar with: A petition for certiorari. That's covered in 28 U.S.C. § 1254(1):

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Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree;

(2) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.

Get that?

If the court of appeals really wants direction, it can bypass (the normal method of) certiorari and have the SCOTUS intervene, directly.

Wishful thinking perhaps, but a sneaky way of telling the panel not to pull a "Wilkinson?"

Davis somewhat informally mused that maybe they should just "do everyone a favor" and decide the question of outside-the-home in order to kick it up to SCOTUS. Gura apparently seized the opportunity to remind the court of another available option. If they do not avail themselves of it, what inference could be drawn?

Is this 'question' method of seeking guidance at all common? This layman hasn't heard of it before now.

As I've replied both at CGN and MDShooter, it's what "Fabio" doesn't say that counts.

A question that is certified by a CCA (as rare as it may be), must be answered by the Supreme Court. The choice that Court gets (the "may" part) is whether or not they answer the question in a binding interpretation or if they pull the entire case in to be decided (the "or" part).

This isn't a petition seeking certification (essentially what certiorari means), it is a direct certified question that must be answered.

As to why Gura inserted this tidbit, we can only speculate at this point.

My initial reading was that Gura was indulging in a little sarcasm, in the spirit which the idea was offered by the one judge to the one hoping for a way out of making a decision.

I didn't know of the second path to SCOTUS without Al's explanation.

For an attorney to advise a court, much less a panel, as to how to take a decision to SCOTUS, seems a little cheeky to me. Since the court seems tolerant of him, he might have decided to pull a little on their collective pork chop while reminding them of a way to hand the football off.

I dunno.

__________________
Loyalty to petrified opinions never yet broke a chain or freed a human soul in this world — and never will.
— Mark Twain

Remembering that Judge Wilkinson wrote a scathing rebuke of the Heller decision (and Justice Scalia - Of Guns, Abortions, and the Unraveling Rule of Law), to which Alan Gura wrote his own response, this may indicate a further response to the circuit, in general, and (a further rebuke to) Judge Wilkinson is particular (yes, Judges do talk to one another).

Of course, this is mere speculation on my part. I have no inside information.

I have to retract part of my explanation of how 1254(2) works. I was wrong.

It was called to my attention on both MDShooters and CGN, So I just refreshed my memory on the Supreme Courts' Rule 19. To recap, 28 U.S.C. § 1254(2) reads as follows:

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By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.

Why am I wrong? The Supreme Court is reading the language of 28 U.S.C. § 1254(2) to say:

upon such certification the Supreme Court may give binding instructions;

or

[may] require the entire record to be sent up for decision of the entire matter in controversy.

The above reading squares with Rule 19 and what the Court did in United States v. James Ford Seale, a 2009 case mentioned at MDShooters and alluded to by "Fabio" at CGN.

It obviously doesn't matter if I agree or disagree with this interpretation. It is what it is.

After the Kachalsky opinion from the CA2 was given, the State drafted a 28J letter and noticed the ruling to the court (27 Nov.).

Alan Gura has sent a reply to that 28J notice (attached). Most telling is the final paragraph (emphasis, mine):

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Finally, Kachalsky’s use of rational basis review was not sanctioned simply by being euphemistically styled “intermediate scrutiny.” Kachalsky eviscerated the right to bear arms merely upon the State having declared it unacceptable as a matter of public policy. The KachalskyCourt refused to question a legislative judgment relating to an enumerated, fundamental right. But in so doing, Kachalsky second-guessed the People’s ratification of the Second Amendment—an act the Supreme Court will soon have an opportunity to review.

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